U.S. v. Levy

• Decision Date: 09 April 1993
• Docket Number: No. 91-3030,91-3030
• Citation: 990 F.2d 971
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Sam LEVY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 971

990 F.2d 971

UNITED STATES of America, Plaintiff-Appellee, v. Sam LEVY, Defendant-Appellant.

No. 91-3030.

United States Court of Appeals, Seventh Circuit.

Argued April 8, 1992.

Decided April 9, 1993.

Lisa Huestis, Lance C. Malina, Barry R. Elden, Asst. U.S. Attys., Office of the U.S. Atty., Crim. Receiving, Appellate Div., Chicago, IL, for plaintiff-appellee.

Michael G. Logan, Chicago, IL (argued), for defendant-appellant.

Before CUMMINGS and CUDAHY, Circuit Judges, and DILLIN, District Judge. ^*

CUDAHY, Circuit Judge.

Sam Levy was convicted on a conditional guilty plea of felonious possession of a firearm. Based on his prior felony convictions his sentence was enhanced under 18 U.S.C. § 924(e) and he was sentenced to fifteen years imprisonment. Levy challenges the conviction on the ground that the police arrested him without probable cause and that therefore the district court erred in denying his motion to suppress the firearm and the other evidence found in a search of his person incident to that arrest. We reverse.

I.

On November 3, 1988, Joe Hunter Kincade of G & J Sales, a telemarketing firm located in Chicago, Illinois, telephoned Michael Pielli, the owner of Hanson's Billiards in Evergreen Park, a suburb of Chicago. Kincade asked Pielli for a donation for the Illinois Police Federation and Pielli, having contributed to the Federation in the past, agreed to donate twenty-five dollars for the Federation's Underprivileged Children's Christmas Party. Kincade told Pielli that he would send a runner over the next day to pick up the donation. Pielli then proceeded to call the Evergreen Park police and informed them of Kincade's call.

Enter defendant Sam Levy, Joe Kincade's messenger. At 1 p.m. on November 4, 1988, Levy arrived at Hanson's Billiards. While Levy waited, Pielli called the police to tell them that Kincade's messenger had indeed arrived to collect the donation. Two officers were dispatched and arrived shortly at Hanson's Billiards. They approached Levy who was waiting in the display area of the store and asked him if he had a permit to solicit in Evergreen Park. He answered that he did not, and the police arrested him for solicitation without a permit.

After the police arrested Levy, they searched him and recovered from his person a loaded .32 caliber handgun and a four-inch hunting knife. The Evergreen Park police charged Levy with operating a business in Evergreen Park without having first obtained a license in addition to various Illinois firearms violations. The local authorities ultimately dropped their charges after the United States expressed an intention to bring firearms charges.

On June 8, 1989, Sam Levy was indicted for possessing a firearm after having been convicted of a felony, in violation of 18 U.S.C. § 922(g)(1). Levy filed a motion to suppress all evidence derived from the search incident to his arrest on the ground that the arrest had been made in violation of the Fourth Amendment. The district court initially granted the motion based on its finding that the arrest had been made without probable cause because section 26-35 of the Evergreen Park Village ordinances prohibits solicitation without a permit only "upon the street, sidewalk, or public ways of the Village," Evergreen Park, Ill., Code § 26-35, and Levy had been in a privately owned business establishment at the time of his arrest. The district court later reversed its ruling on the motion of the government, which argued that the police had probable cause to arrest Levy based not on section 26-35 but on section 26-20, which prohibits solicitation in "any private residence, apartment or premises in the Village" without a permit. Evergreen Park, Ill., Code § 26-20. Levy contends that the district court erred in reversing its initial decision to grant the motion because the police knew Levy was not soliciting; he was merely picking up an agreed-upon donation that had already been solicited.

II.

This court recently resolved the previously disputed question of the appropriate standard of review for Fourth Amendment determinations of probable cause. In reviewing such determinations, we will not disturb the district court's denial of a motion to suppress unless the decision is clearly erroneous. United States v. Spears, 965 F.2d 262, 269 (7th Cir.1992).

Police officers have probable cause to make an arrest where "the facts and circumstances within their knowledge and of which they [have] reasonably trustworthy information [are] sufficient to warrant a prudent man in believing that the [suspect] had committed or was committing an offense." Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 224, 13 L.Ed.2d 142 (1964). "[P]robable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity." Illinois v. Gates, 462 U.S. 213, 244 n. 13, 103 S.Ct. 2317, 2335 n. 13, 76 L.Ed.2d 527 (1983). The determination of whether probable cause exists in a given situation involves a common sense view of the everyday realities of life. Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879 (1949); Hughes v. Meyer, 880 F.2d 967, 969 (7th Cir.1989), cert. denied sub nom., Hughes v. Buss, 495 U.S. 931, 110 S.Ct. 2172, 109 L.Ed.2d 501 (1990).

This case presents a single question for review: Did the two arresting officers have probable cause to believe that the man in Pielli's store, later identified as Sam Levy, was engaging in or was about to engage in illegal activity? The United States argues that the sum total of the following facts, known to the officers at the time of the arrest, amounts to probable cause that Levy was...